The Roundhouse in Santa Fe (Photo by Peter St. Cyr)
With the proposal to create a state ethics commission under consideration in the Senate Rules Committee, activists lobbying for the bill say they’d like to see a better balance between confidentiality and the public’s right to know than would be created by some of the bills under consideration.
For example, Sen. Linda Lopez’s Senate Bill 43 would require confidentiality during the process of an investigation, and violators could be subject to a criminal misdemeanor citation or a civil fine of up to $25,000.
The New Mexico Foundation for Open Government and Common Cause New Mexico don’t like that.
“To the extent that it puts a gag order on someone submitting a complaint, or a third party such as a journalist… it’s unconstitutional,” said FOG Executive Director Sarah Welsh. “It would violate their First Amendment right.”
Common Cause Executive Director Steve Allen also expressed concern about the penalties in Lopez’s bill.
“It’s important to protect the accused, but we have to find the right balance,” he said, adding that, at the very least, there should not be a penalty for violating the confidentiality clause in the proposed law.
That would be similar to constitutional provisions governing the state’s Judicial Standards Commission, which requires confidentiality but imposes no penalties for violations.
Welsh wants lawmakers to go even further in the direction of openness. She said allegations against public officials tend to become public no matter what. Because of that, it should be as important for the accused as it is to the public that the ethics commission process be open, especially if the commission finds no violation.
“It doesn’t really make sense for the acquittal to be private when the allegation is public,” she said.
Were Welsh to have her way, the bill that emerges from the Rules Committee would keep the complaint and investigation secret until the ethics commission holds a hearing on the matter – but the hearing would be public, as would whatever action results.
Other concerns
Allen has other concerns about the proposed ethics commission bills. He said Common Cause wants to ensure that, even with the current budget crunch, the commission is fully funded. In the past the House has approved but not funded the ethics commission proposal.
Common Cause also wants the commission to have independent subpoena power.
In addition, at least one of the pending bills would have the state pay for the legal defense of public officials who have complaints filed against them. Allen called that “fairly unusual,” and noted that the state Constitution doesn’t provide for the state paying the legal fees of judges who are investigated.
Allen did say he’s glad the legislation has progressed. He said all pending ethics commission bills are better than what passed the House in the last session.
“A lot of great work has been put into these bills,” Allen said. “… I think it’s important, though, that it be done right.”